Friday, September 16, 2016
As I write, first-year torts students across the country are learning that much of the law of negligence isn’t really “law” but is instead an accumulation of judgments about something called “policy” (often based on cost-benefit analysis) by courts about whether liability is appropriate. To think about, for example, whether a duty of care existed between this defendant and this plaintiff in any other way is a hopelessly naïve harkening back to the bad old days of privity and other retrograde concepts in cases like Winterbottom v. Wright (1842).
That all seems to me badly mistaken. It’s a legacy of the moral skepticism of Oliver Wendell Holmes and William Prosser to reject any vestige of formalism and regard torts as basically a utilitarian regulatory body of law. (That’s a rough characterization, but the details are persuasively spelled out by John Goldberg and Ben Zipurksy in The Moral of MacPherson, 146 U. Pa. L. Rev. 1733 (1998)). The great merit, among others, of the civil recourse view of Goldberg and Zipurksy is to rebut that skepticism and bring some legal structure back into the discussion of duties of care.
The same kind of argument can, I think, also be brought to bear on the element of proximate causation, though proximate cause is probably trickier than duty. I started thinking about this when I read a blog post from a while ago by Alexander Pruss on “causation in the right way:"
It's a medieval dictum that causes contain their effects. But that needs qualification. Causes in a sense contain their proper effects. They contain those proper effects as telê, and then some aspect of the effect--perhaps with cooperation or thwarting from other causes--just is an actualization of the cause with that telos. When all goes well, the whole of the teleologically specified effect is an actualization of the cause, but in aberrant cases, very little is....
[W]e could say that when x causes y in the right way, then being-an-actualization-of-x is an intrinsic feature of y, a feature that is causally involved in everything y does, and so when y causes z in the right way, z has the intrinsic feature of being-an-actualization-of-y, and we can go back down the chain to x. Perhaps this is what Aquinas means by per se ordered causal series.
This isn't the place for a complete account of how to map "causation in the right way" onto the element of proximate cause in torts, but I think that account would be a helpful corrective to so much blather in torts casebooks about proximate cause as a free-for-all policy judgment. And most importantly, as Pruss notes, such an account would "require a fairly non-reductive metaphysics of human beings."
I’ve been reading a lot of Bernard Williams lately—partly for some professional reasons, partly out of sheer enjoyment and admiration for his bracing arguments. His critique of utilitarianism seems to me still underappreciated by legal scholars, but why that might be so and its importance are topics for another time. Here is a little bit from his essay “The Makropulos Case: Reflections on the Tedium of Immortality” (from his 1973 collection Problems of the Self) discussing the Spanish philosopher Miguel de Unamuno--and with perhaps some important implications for law:
Unamuno reveals himself at equal removes from Manicheanism and from Utilitarianism; and that is correct, for the one is only the one-legged descendant of the other. That tradition – Manichean, Orphic, Platonic, Augustinian* – which contrasts the spirit and the body in such a sense that the spiritual aims at eternity, truth and salvation, while the body is adjusted to pleasure, the temporary, and eventual dissolution, is still represented, as to fifty per cent, by secular Utilitarianism: it is just one of the original pair of boots left by itself and better regarded now that the other has fallen into disrepair. Bodies are all that we have or are: hence for Utilitarianism it follows that the only focus of our arrangements can be the efficient organisation of happiness. Immortality, certainly, is out, and so life here should last as long as we determine – or eventually, one may suspect, others will determine – that it is pleasant for us to be around.
Unamuno’s outlook is at the opposite pole to this and whatever else may be wrong with it, it salutes the true idea that the meaning of life does not consist either in the management of satisfactions in a body or in an abstract immortality without one. On the one hand he had no time for Manicheanism, and admired the rather brutal Catholic faith which could express its hopes for a future life in the words which he knew on a tombstone in Bilbao:
Aunque estamos in polvo convertidos
zen Ti, Señor, nuestra esperanza fía,
que tomaremos a vivir vestidos
con la carne y la piel que nos cubria.**
*I don’t think it's quite accurate to lump “Augustinian” into this set of views given Augustine's break (how much so is a long-running debate) from Manichaeism.
**Though we are become dust,
In thee, O Lord, our hope confides,
That we shall live again clad
In the flesh and skin that once covered us.
(Miguel de Unamuno, The Tragic Sense of Life (1921), trans. J.E. Crawford Flitch)
Friday, July 29, 2016
Theologian Anna Bonta Moreland (who happens to be my wife) and I discussed Pope Francis's apostolic exhortation Amoris Laetitia at the University of Chicago Divinity School a few weeks ago at an event sponsored by the Lumen Christi Institute, and the video has been posted here. For MOJ purposes, I included some remarks about implications for the law raised by the document in the areas of marriage, education, and adoption.
Thursday, January 28, 2016
I am teaching a seminar this semester at Notre Dame on Catholic social thought and law, and this week we are discussing the remarkable legacy of Pope Leo XIII (r. 1878-1903) through an examination of his famous social encyclical Rerum Novarum (1891) and other writings. For today's Feast of Saint Thomas Aquinas, here is a bit from Aeterni Patris (1879), the encyclical that rehabilitated the place of philosophy in modern Catholic intellectual life (and may all of us aspire to follow Thomas's example by "wanting neither...soundness of principles or strength of argument").
Among the Scholastic Doctors, the chief and master of all towers Thomas Aquinas, who, as Cajetan observes, because "he most venerated the ancient doctors of the Church, in a certain way seems to have inherited the intellect of all."(34) The doctrines of those illustrious men, like the scattered members of a body, Thomas collected together and cemented, distributed in wonderful order, and so increased with important additions that he is rightly and deservedly esteemed the special bulwark and glory of the Catholic faith. With his spirit at once humble and swift, his memory ready and tenacious, his life spotless throughout, a lover of truth for its own sake, richly endowed with human and divine science, like the sun he heated the world with the warmth of his virtues and filled it with the splendor of his teaching. Philosophy has no part which he did not touch finely at once and thoroughly; on the laws of reasoning, on God and incorporeal substances, on man and other sensible things, on human actions and their principles, he reasoned in such a manner that in him there is wanting neither a full array of questions, nor an apt disposal of the various parts, nor the best method of proceeding, nor soundness of principles or strength of argument, nor clearness and elegance of style, nor a facility for explaining what is abstruse.
Thursday, January 21, 2016
Thursday, January 14, 2016
I was hoping someone would give me a chance to say something about Monday’s oral argument in Friedrichs v. California Teachers Association, and MOJ-friend Michael Sean Winters graciously obliges over at his blog in a post about the latest “assault” on unions. Michael Sean and I have been around before on some issues about Catholic social teaching and unions, so why stop now?
One can, as I do, subscribe to the Catholic Church’s teaching from Rerum Novarum on about the role of unions in civil society, appreciate much in the insightful paper by Lew Daly to which Michael Sean cites, and yet think all of that has nothing to do with the issues in Friedrichs.
For starters, I think Michael Sean is a little cavalier in writing that Friedrichs is “not really about the First Amendment at all.” That’s a conclusion, not an argument. And on the law of the First Amendment, Friedrichs poses some hard questions (unless, I suppose, one is prepared broadly to countenance compelled subsidization of speech). I am not sure the point of Michael Sean’s initial hypotheticals about violations of trade secrets and trademarks, but the issue in Friedrichs strikes me as quite different. No one doubts that violations of trade secrets and trademarks can be sanctioned. But can the state require as a condition of public sector employment that a non-union member pay an agency fee? That’s a difficult question, and the answer the Court gave almost 40 years ago in Abood v. Detroit Board of Education is badly reasoned (as just one example, by assuming the constitutionality of compulsory payments based on two private sector union cases, Railway Employees’ Department v. Hanson and Machnists v. Street, that dealt with the First Amendment issue in a sentence and not at all, respectively). A cite to Rerum Novarum doesn’t resolve the free speech question.
And then there’s the basic distinction between private and public sector unions. The permissibility of agency dues in the private sector isn’t at issue in Friedrichs (conceded at the outset of oral argument by Michael Carvin), so it’s a little hard to see how this is an all-out “assault” against unions. Nor does Friedrichs question the permissibility of agency shop arrangements in either the public or private sector, only whether non-union members must subsidize a public employee union’s political activity—so the arguments in Michael Sean’s penultimate paragraph about union formation seem to me beside the point. The line between collective bargaining and political activity for public sector unions is impossible to draw, and that’s the core of the plaintiffs legal argument against the compulsory agency fee. As Justice Kennedy put it at oral argument:
The union basically is making these teachers compelled riders for issues on which they strongly disagree. Many teachers think that they are devoted to the future of America, to the future of our young people, and that the union is equally devoted to that but that the union is absolutely wrong in some of its positions. And agency fees require, as I understand it—correct me if I'm wrong—agency fees require that employees and teachers who disagree with those positions must nevertheless subsidize the union on those very points.
Finally, could I make a plea here for scholars working on Catholic social thought to spend a little time confronting the classic argument by Ralph Winter and Harry Wellington about public sector collective bargaining before waxing rhapsodic about Rerum Novarum and the unalloyed blessings that unions provide? As Rick Hills put it a while ago, the inelasticity of demand for their services and manipulation of the political process to their advantage means that public employee unions are differently situated than, say, trade unions. There are all sorts of bad policies created when public union-controlled services (prisons and public schools in some areas, for example) are consumed largely by lower income people, which is, at least arguably, part of the reason why we have so many prisons and such bad public schools (as Rick points out, the prison guard union in California was a powerful lobby for "three strikes, you're out" life sentencing). I hope the plaintiffs prevail in Friedrichs because that’s the right legal outcome, but I also think it would be a small step to correcting some of our injustices and policy distortions.
Monday, January 11, 2016
The Torts and Compensation Systems Section of the AALS had a terrific panel on Friday afternoon, the topic of which was the 100th anniversary of MacPherson v. Buick Motor Co. and included presentations by the most interesting (in my view) contemporary scholars in tort law, John Goldberg and Ben Zipursky.
The highlight of the session for me, though, was the presentation of the Prosser Award for outstanding achievement in the field to Aaron Twerski of Brooklyn Law. I've long admired Twerski's work and his central role in drafting the Third Restatement on Products Liability. What I did not know--and was recounted by Twerski in his short acceptance speech on Friday--was that he almost did not become a law professor were it not for some good fortune in 1967. Twerski was at the time a teaching fellow at Harvard Law School, which provided an automatic path into a law teaching position. But Twerski (a Hasidic Jew) alone among his colleagues that year did not get a teaching position because, as he put it (and I am quoting here from memory), "I looked like this," pointing to his skullcap and his long beard, and "people were more straightforward about such things back then than they are now." Late in the year, however, he received a call from John Murray (then the acting dean at Duquesne) inviting him to fill a teaching position vacated on account of an unexpected retirement.
As Twerski recounted the story, were it not for that offer some 50 years ago, he would have returned to practice and never set out on his academic career. He concluded, "I would like to think such discrimination is a thing of the past, but I fear it is not." I was especially moved to learn that John Murray (a Catholic and later dean at Villanova Law and president of Duquesne, who died last year) and a Catholic university played such an important role in launching Twerski's distinguished career.
Tuesday, December 29, 2015
A reflection for today's Feast of Saint Thomas Becket:
Becket was a type of those historic times in which it is really very practical to be impracticable. The quarrel which tore him from his friend's side cannot be appreciated in the light of those legal and constitutional debates which the misfortunes of the seventeenth century have made so much of in more recent history. To convict St. Thomas of illegality and clerical intrigue, when he set the law of the Church against that of the State, is about as adequate as to convict St. Francis of bad heraldry when he said he was the brother of the sun and moon. There may have been heralds stupid enough to say so even in that much more logical age, but it is no sufficient way of dealing with visions or with revolutions. St. Thomas of Canterbury was a great visionary and a great revolutionist, but so far as England was concerned his revolution failed and his vision was not fulfilled. We are therefore told in the text-books little more than that he wrangled with the King about certain regulations; the most crucial being whether "criminous clerks" should be punished by the State or the Church. And this was indeed the chief text of the dispute; but to realise it we must reiterate what is hardest for modern England to understand—the nature of the Catholic Church when it was itself a government, and the permanent sense in which it was itself a revolution.
It is always the first fact that escapes notice; and the first fact about the Church was that it created a machinery of pardon, where the State could only work with a machinery of punishment. It claimed to be a divine detective who helped the criminal to escape by a plea of guilty. It was, therefore, in the very nature of the institution, that when it did punish materially it punished more lightly. If any modern man were put back in the Becket quarrel, his sympathies would certainly be torn in two; for if the King's scheme was the more rational, the Archbishop's was the more humane. And despite the horrors that darkened religious disputes long afterwards, this character was certainly in the bulk the historic character of Church government. It is admitted, for instance, that things like eviction, or the harsh treatment of tenants, was practically unknown wherever the Church was landlord. The principle lingered into more evil days in the form by which the Church authorities handed over culprits to the secular arm to be killed, even for religious offences. In modern romances this is treated as a mere hypocrisy; but the man who treats every human inconsistency as a hypocrisy is himself a hypocrite about his own inconsistencies.
Our world, then, cannot understand St. Thomas, any more than St. Francis, without accepting very simply a flaming and even fantastic charity, by which the great Archbishop undoubtedly stands for the victims of this world, where the wheel of fortune grinds the faces of the poor. He may well have been too idealistic; he wished to protect the Church as a sort of earthly paradise, of which the rules might seem to him as paternal as those of heaven, but might well seem to the King as capricious as those of fairyland. But if the priest was too idealistic, the King was really too practical; it is intrinsically true to say he was too practical to succeed in practice. There re-enters here, and runs, I think, through all English history, the rather indescribable truth I have suggested about the Conqueror; that perhaps he was hardly impersonal enough for a pure despot. The real moral of our mediæval story is, I think, subtly contrary to Carlyle's vision of a stormy strong man to hammer and weld the state like a smith. Our strong men were too strong for us, and too strong for themselves. They were too strong for their own aim of a just and equal monarchy. The smith broke upon the anvil the sword of state that he was hammering for himself. Whether or no this will serve as a key to the very complicated story of our kings and barons, it is the exact posture of Henry II to his rival. He became lawless out of sheer love of law. He also stood, though in a colder and more remote manner, for the whole people against feudal oppression; and if his policy had succeeded in its purity, it would at least have made impossible the privilege and capitalism of later times. But that bodily restlessness which stamped and spurned the furniture was a symbol of him; it was some such thing that prevented him and his heirs from sitting as quietly on their throne as the heirs of St. Louis. He thrust again and again at the tough intangibility of the priests' Utopianism like a man fighting a ghost; he answered transcendental defiances with baser material persecutions; and at last, on a dark and, I think, decisive day in English history, his word sent four feudal murderers into the cloisters of Canterbury, who went there to destroy a traitor and who created a saint.
G.K. Chesterton, A Short History of England (1917), 76-79.
Thursday, December 17, 2015
Following on Tom's post about the matter at Wheaton College and the question of whether Christians and Muslims "worship the same God," it is worth pointing out that the question is a settled one in Catholic doctrine. Nostra Aetate (Vatican II's Declaration on the Relation of the Church to Non-Christian Religions) states:
3. The Church regards with esteem also the Moslems. They adore the one God, living and subsisting in Himself; merciful and all-powerful, the Creator of heaven and earth, who has spoken to men; they take pains to submit wholeheartedly to even His inscrutable decrees, just as Abraham, with whom the faith of Islam takes pleasure in linking itself, submitted to God. Though they do not acknowledge Jesus as God, they revere Him as a prophet. They also honor Mary, His virgin Mother; at times they even call on her with devotion. In addition, they await the day of judgment when God will render their deserts to all those who have been raised up from the dead. Finally, they value the moral life and worship God especially through prayer, almsgiving and fasting.
Since in the course of centuries not a few quarrels and hostilities have arisen between Christians and Moslems, this sacred synod urges all to forget the past and to work sincerely for mutual understanding and to preserve as well as to promote together for the benefit of all mankind social justice and moral welfare, as well as peace and freedom. (emphasis added)
That still leaves, of course, various and important questions to be explored about this doctrinal claim and its political-theological significance. I commend a recent article in Theological Studies (here for those with institutional subscriptions) by Anna Bonta Moreland (my wife).
Tuesday, December 15, 2015
Over at NCR, Michael Sean Winters has a post about the latest case involving adjunct faculty unionization efforts at Catholic universities, this time at Loyola-Chicago (following on similar cases at Seattle University, St. Xavier in Chicago, Manhattan College, Duquesne, and others). Those schools (along with the Association of Catholic Colleges and Universities and the Association of Jesuit Colleges and Universities in amicus briefs) have been engaged in an argument with the National Labor Relations Board for the past few years about NLRB jurisdiction over adjunct faculty unions. I’ve written about the issue previously here at MOJ.
At the outset, I resist the characterization (though understand why it would be rhetorically effective, especially in a Catholic setting) to frame this issue as one of being “for” or “against” unions. Before this is a freewheeling debate about Catholic social teaching or the value of unions, NLRB jurisdiction over adjunct faculty collective bargaining at Catholic universities is a straightforward and narrow question of statutory interpretation. Absent clear congressional intent to place teachers at religious institutions under the jurisdiction of the National Labor Relations Act, the canon of constitutional avoidance requires that the statute be interpreted so as to avoid raising First Amendment problems. That is the unambiguous holding of the Supreme Court’s decision in NLRB v. Catholic Bishop in 1979 (and for reasons that Doug Laycock classically expressed here). Every subsequent decision in the circuit courts looking at NLRB jurisdiction over religiously affiliated universities—from then-Judge Breyer’s controlling opinion in Universidad Central de Bayanom v. NLRB, 793 F.2d 383 (1st Cir. 1986) (en banc) (Breyer, J., for half of an equally divided court), to the D.C. Circuit’s opinion in University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002)—agrees with that interpretation of the NLRA’s scope. The legal argument against NLRB jurisdiction over adjunct faculty unions at religiously affiliated schools (absent congressional amendment of the NLRA or a Supreme Court case revisiting Catholic Bishop) is about as clear as you can get.
But that hasn’t stopped the NLRB from engaging in more than 30 years’ worth of conceptual gymnastics to avoid the implications of those holdings (grounded in the Board’s non-acquiescence to circuit court precedents, see D.L. Baker, Inc., 351 NLRB 515, 529, fn. 42 (2007)). As I noted after the Board’s decision in the Pacific Lutheran case, the test now applied for withholding NLRB jurisdiction over faculty is whether the university “hold[s] out faculty as performing a specific religious function,” which requires, for example, findings about whether and which faculty engage in “religious indoctrination” (whatever that is) or whether the school has a commitment to academic freedom. (As an aside, I should clarify that this applies only to non tenure-track faculty, as tenure-track faculty are deemed “managerial employees” under the Supreme Court’s decision in NLRB v. Yeshiva University in 1980.) And, again, this means that the Board is exercising its judgment about the incompatibility of academic freedom with a religious mission or whether only faculty engaging in “religious indoctrination” are serving the mission of a school, both propositions that are widely rejected in American Catholic higher education. This inquiry, just as the earlier “substantially religious character” test, poses a serious risk of entanglement in the mission of religiously affiliated schools, a risk not posed by regulations about, say, asbestos or lead paint (which Winters cites for his argument).
A quick concluding point about how this comports with Catholic teaching on the rights of workers to organize. As argued in detail by Kathleen Brady in this article, there should be some hesitation before simply assimilating Catholic social teaching on unions to the NLRA’s framework. As Kathleen notes, Rerum Novarum and successive papal social encyclicals emphasize the fundamentally cooperative relationship between management and labor, not the conflict and balancing of interests that marks the approach of the NLRA. That cooperative vision of labor relations—and not the NLRB’s cramped definition of what constitutes a religious institution—should serve as our guide for resolving this debate.